This offence should be distinguished from the one contained in section 127 ofthe Mental Health Act 1983 which creates an offence in relation to staff employedin hospitals or mental nursing homes where there is ill-treatment or wilful neglect.

The offence created can be split into two parts i.e. wilful neglect or ill treatment of aperson who lacks capacity.

The section will apply if a person ("A");

Has the care of a person ("B") who lacks capacity or whom "A" reasonably believes to lack capacity.

Is the donee of a lasting power of attorney or an enduring power of attorney created by "B".

Is a deputy appointed by the Court for "B".

"A" is guilty of an offence if he ill treats or wilfully neglects "B".

There is no definition of "ill treats" or "neglects" within the Act so every day meaningsof the word provide definition. The definition of ill treatment relies upon the definitionsof the types of abuse which include the following:

Physical

Sexual

Discrimination

Psychological

Financial

Emotional

If a person commits any of the above forms of abuse in respect of a person who lackscapacity then they will be guilty of ill treatment.

Under this offence, all people who have contact with people who lack capacity are liableto prosecution.

Interestingly, neither section 44 of the MCA or section 127 of the MHA provides generalprotection for older people. Under these provisions they must either lack mental capacityor have a mental illness. In a case where an older person with capacity and no historyof mental illness was found to be abused, the abuser would face the standard criminal

charges of assault and in a very extreme case where the sufferer dies, manslaughter.

Wilful neglect applies to those who have a duty of care towards people wholack capacity. This means that one cannot be guilty of neglect unless they have aresponsibility to that person.

This duty of care derives from the Mental Capacity Act 2005 and its accompanying Codeof Practice.

Part 14.3 of this Code of Practice gives examples of the kind of act that may constituteabuse and ill treatment. Importantly the Code includes neglect and acts of omission. This,it states, may include ignoring the person's medical or physical care needs, failing to gethealthcare or social care and withholding medication, food or heating.

Wilful neglect will usually mean that a person has deliberately failed to carry out an actthey knew they had a duty to do. The offence will apply to anyone caring for a personwho lacks capacity to make decisions for themselves and this will include family carers,healthcare and social care staff in care homes or hospitals and those who provide care in aperson's home.

Neglect is not providing reasonable, appropriate or agreed care or a failure to act in a waythat any reasonable person would act.

Neglect or Acts of Omission can include:

Not responding to a person's basic needs, i.e. assisting with feeding, drinking, toileting or in meeting personal care needs. Preventing someone else from responding to those needs

Not meeting the basic standards of care or professionalism

Withholding or preventing access to medical care or treatment

Withholding or preventing access to the receipt of goods or services

Being prevented from interacting with others

Failing to undertake a reasonable assessment of risk or allowing a person to harm themselves or cause harm to others

This responsibility is important when considering the meaning of the term "wilful" in this context which can be interpreted in two different ways:

The person understood their responsibilities under the Mental Capacity Act and wilfully disregarded them;

The person had a duty of care toward the service user and wilfully chose not to learn about it.

R v Sheppard [1981] AC394 HL clarified the definition of wilful neglect to mean that A must neglect P and it must be that this was done either deliberately or where an act or omission is performed and A does not care so as to be reckless whether such an omission amounts to neglect.

This interpretation clearly suggests that failure to understand duties under this act and take appropriate training will not be accepted as a defence. It may even be argued that such a failure is wilful neglect in itself.

When a manager or other care provider in a position of responsibility does not ensure that the appropriate care, environment or services are provided to maintain the health and safety of vulnerable people in their care then they may be open to a charge of "Wilful Neglect".

Care home owners and managers have to take great care in ensuring that their staff are fully versed on this legislation and that any form of neglect of a person in their care could result in a prison sentence of up to 5 years and a large fine.

The responsibility sits squarely with those who have vulnerable people in their care.

Many believe that the commissioning local authority should bear some of this responsibility, however, this would not apply unless that authority were directly providing the care and only then, it would have to be proved that the authority failed to educate staff about their responsibilities to the vulnerable person in question.

So far most cases have involved the prosecution of direct frontline carers, where the evidence is very specific of wrongdoing by an individual. Owners and managers of small care homes have also been successfully prosecuted where there is clear evidence of what might be described as "institutional abuse". Despite some attempts such charges have not been successfully prosecuted against large scale providers or their senior management. There is clear room for such service managers and their companies to be prosecuted particularly where they have failed properly to manage the delivery of such policies. The threshold to secure a conviction is very low and could be achieved by, for instance, evidence of failure to manage environmental improvements so that service users were kept in clearly poor surroundings. However, in a criminal context, the change must be proved beyond reasonable doubt, Remember that guilt will be determined by magistrates or jurors who are likely to be very unsympathetic to care providers and staff.

One is drawn to the conclusion that the lack of prosecution is based on a lack of appetite or understanding of care sector standards by prosecutors. A change in this attitude could see many more prosecutions at any level.

Under the Health and Social Care Act 2008 regime reckless or deliberately false self certification will clearly open responsible managers to the prospect of criminal liability with much less room to escape.

All those concerned in delivery of care should be very aware of the potential for career devastating criminal action and not assume that such issues will be limited to cancellation of registration or possibly professional disciplinary proceedings.

Carers and middle managers should make sure that they report concerns and act to do all they can to ensure concerns are met.

Disclaimer

The Ridouts Legal Bulletin is not intended as a substitute for seeking specific advice or as a statement of the law. If after reading this you identify that you may have a legal problem, please contact us for tailored advice.